September 25, 2021

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Biden’s Authority to Mandate Vaccines Stems From Law Protecting Workers From ‘Grave Dangers’ – The New York Times

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In the case of the Covid-19 vaccine, the administration will argue that the death and illness caused by the Delta variant of the coronavirus poses a “grave danger” to workers across the country, and that the vaccine is an extremely effective way of preventing severe illness, hospitalization and death.

Those arguments will likely be included as part of a preamble to the regulatory language that officials at OSHA and the Labor Department are drafting, according to a White House official, who spoke on the condition of anonymity to discuss regulations that are still under development.

Once the regulations are in place, OSHA will enforce them using the usual tools provided to the agency: They will collect reports of violations and will send inspectors out to businesses. And for those businesses that refuse to enact the rules, the agency can impose $13,600 fines for minor violations and $136,000 for major ones.

Kathryn Bakich, a senior vice president at Segal, an employee benefits consulting company, noted that “this is the first vaccine mandate ever applicable to private employers.” But she added that many employers were already “moving toward mandatory vaccination policies at great speed.”

Wendy K. Mariner, a professor emeritus of health law, ethics and human rights at the Boston University School of Public Health, said that the administration’s logic made legal sense.

“Employers have a duty of care to maintain a safe workplace under the Occupational Safety and Health Act,” she said. Given the transmissibility of the virus, she said “it is quite sensible to require vaccination (or testing/masking for those with contraindications to the vaccine; and accommodations for those with disabilities under the A.D.A.) to protect all employees, as well as customers, clients, and patients.”

In his remarks on Thursday, Mr. Biden said it would take weeks, if not longer, for many of his proposals to take full effect — a delay that has real-life consequences as the Delta variant of the virus fills hospitals with severely ill patients who had refused to be vaccinated. The president did not say why he waited until early September to take steps that many health care experts were calling for in July.

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